Taylor, Davinne v. Bradley, Jody ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4061
DAVINNE G. TAYLOR,
Petitioner-Appellant,
v.
JODY BRADLEY, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-C-127—J.P. Stadtmueller, Judge.
____________
ARGUED MAY 11, 2005—DECIDED MAY 22, 2006
____________
Before COFFEY, MANION and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge. After a three-day trial, the jury
convicted Davinne Taylor of armed robbery, Wis. Stat.
§§ 943.32(1)(a) and 939.05, for an armed robbery that
occurred on August 6, 1999 at Rena and Steven Lee’s
apartment in Milwaukee, Wisconsin. After trial, Taylor filed
a post-conviction motion pursuant to Wis. Stat. § 809.30requesting a new trial. In his motion, Taylor argued that
the prosecutor’s comments concerning his post-Miranda
silence violated his right to due process and, further, that
his attorney failed to provide him with effective assistance
at trial. The state trial judge denied the motion, finding
that the performance of his trial attorney had not preju-
diced his case, and proceeded to sentence him to a term of
2 No. 04-4061
25 years. The trial court’s decision was affirmed by the
Wisconsin Court of Appeals and the Wisconsin Supreme
Court denied his petition for review. Taylor next filed a
petition for a writ of habeas corpus in federal court, and the
court denied the same, finding that the alleged ineffective
assistance of Taylor’s trial attorney was not prejudicial to
his case. Since the evidence against Taylor at trial was
overwhelming, and established his guilt beyond a reason-
able doubt, we affirm the denial of Taylor’s petition.
I. BACKGROUND
On August 6, 1999, Rena Lee and her son, Steven, were
robbed at gunpoint in their apartment at 2326 North 45th
Street in Milwaukee, Wisconsin. When the police arrived at
the scene, Rena and Steven informed the investigat-
ing officers that while they were entertaining guests, a
group of men forced their way into the apartment, held
them at gunpoint, and departed with a number of their
possessions.1 During interviews with police, Rena and
Steven identified two acquaintances, Andre Hull and a man
they referred to as “Jarod,” as two of the robbers. Although
the police canvassed the neighborhood shortly after the
robbery, they were unable to locate any suspects at that
time. However, in September of 1999, while continuing
their investigation, the police located and arrested Andre
Hull and Davinne “Jarod” Taylor (Hull’s cousin), and
charged the two men with armed robbery. Prior to trial,
Hull entered an Alford plea, which the trial judge accepted,
and the case against Taylor proceeded to trial.
At trial, the prosecution’s first witness was Rena Lee who
testified that the robbers entered her apartment shortly
1
The items allegedly stolen from the Lee’s residence included
a VCR, cell phone and an indeterminate amount of cash.
No. 04-4061 3
after 8:00 p.m. on August 6, 1999, while six people were
present in the home, including herself, James Addison (her
boyfriend), Steven, and three of Steven’s friends. According
to Rena, she was in her bedroom when the robbers entered,
but when she came out, she observed her guests standing in
her living room with their arms raised. She stated that
there were four or five intruders, including Hull and a man
she knew as “Jarod.” She also testified that she knew Hull
prior to the crime, as he was a friend of her other son
Marvin.2 Rena also recognized “Jarod,” although at the time
of the robbery, she was not aware that Jarod’s given name
was Davinne Taylor. At trial, Rena identified Davinne
Taylor as the man known to her as Jarod.
Rena claimed that during the course of the robbery, Hull
pointed a gun at Steven’s neck, and Taylor told Hull to
shoot him:
Q: And after you saw them with guns, what did they do
at that point?
A: Andre had my son laying on the floor in front of the
entertainment center with the gun pointed to his neck.
Q: And had him, you said, on the floor in front of the
entertainment center with the gun pointed to his neck,
correct?
A: Yes. Yes.
Q: And what was Jarod doing?
A: Oh, he was—I asked him, I asked him why he was
throwing everything out.
Q: You said he was pulling stuff out of where?
2
Rena also stated that she recalled Hull being a guest in her
home during December of 1998.
4 No. 04-4061
A: Out of my drawer in the front room.
Q: And he was—what was he saying?
....
A: He said shoot him, they already saw my face.
After Rena completed her testimony, the prosecutor called
Steven, who recounted that he was watching television with
his mother when he heard banging on the downstairs door.
He arose to discover the cause of the racket and observed
Hull coming up the stairs, followed by Taylor.3 Steven
testified that he met Taylor through his brother approxi-
mately three years prior to the robbery, and would see him
around the neighborhood on occasion.
According to Steven, shortly after the robbers entered the
apartment, they forced him into his bedroom. As he was
being shoved onto his bed, Steven testified that Taylor came
into the room and said to an accomplice, “shoot them, they
already seen [sic] my face.” The threat was not carried out
and the robbers continued trashing the apartment and
carting out anything of value. At some point, Steven claims
Hull repeatedly asked him: “[W]here the money at?”, to
which he replied that “there was none.”
After approximately an hour of rummaging through the
apartment, Steven testified that Hull and another man
escorted him into the bathroom and again asked him about
the location of “the money.” Steven repeated his insistence
that there was no money in the house, and as a result of
this answer he received a punch to the face from one of the
robbers he did not recognize. After he was assaulted, Taylor
escorted Steven outside and ordered him to lie prone on the
ground. Taylor warned him that if he was found to be
3
Like his mother, Steven also referred to Taylor as “Jarod” and
identified him during trial.
No. 04-4061 5
harboring any cash, they would “come back again.” As if to
emphasize this point, Steven claims that Taylor proceeded
to fire his weapon into the earth near him. According to
Steven, later that night, Taylor telephoned him, identified
himself as Jarod, and stated that “he didn’t mean to do it”
and promised that he would return Steven’s belongings the
next day.
The prosecution next called Detective Kirsten Webb, a
nine year veteran of the Milwaukee Police Department, to
the witness stand. Webb, the lead detective on the rob-
bery investigation, recounted that when she arrived at
the Lees’ apartment on August 6, 1999, she observed that
the living room and the two bedrooms had been ransacked
with clothes and other belongings strewn about the floor.
After assessing the crime scene, she obtained a statement
from Steven, who told her that several men—some of whom
he knew—had entered their apartment and repeatedly
made clear that they were looking for money. Detective
Webb then asked Steven if he knew the names of any of the
men that took part in the robbery. He replied that he did,
telling her that one of the men was named Andre Hull and
the other was known to him only as “Jarod.” Detective
Webb also recalled Steven informing her that two of the
perpetrators had been armed during the robbery. While
Steven was giving his statement, Detective Webb observed
that he had an abrasion on the left side of his face, which he
stated was caused by his having been struck with a gun by
one of the robbers.
Following Detective Webb’s initial conversation with
Steven, during which he identified Hull by name as being
one of the perpetrators, she procured a picture of Hull. After
viewing the picture, Steven confirmed that Hull was indeed
one of the men that he had previously identified as having
taken part in the armed robbery. On August 7, 1999, the
day after the armed robbery, Detective Webb displayed a
6 No. 04-4061
photographic array to Rena Lee including a picture of Hull,
and she too identified him as one of the robbers.4 Based on
this information police prepared a warrant for Hull’s arrest,
but while that warrant was being processed he was arrested
and detained on an unrelated offense. While in police
custody, Hull was questioned about the Lee robbery, and
during the course of an interview with Detective Webb, he
gave her the name of his cousin, Davinne “Jarod” Taylor, as
having been involved. Based on Hull’s statement, Webb
secured a second group of mug shots from the police depart-
ment’s files which included a picture of Taylor. On Septem-
ber 16, 1999, she displayed the second array to the Lees,
and, according to Detective Webb, each of them positively
identified Taylor as one of the robbers.
After the prosecution rested, the defense called Sharlisha
Thomas as an alibi witness. Thomas stated that she had
known Taylor for three and a half years and that they had
conceived a child together. She went on to recount that one
evening in early August of 1999, Taylor visited her house
and delivered some clothes for the baby. She could not
remember the exact date of his visit, only that it was in
early August of 1999. She estimated that he arrived at
approximately 7:00 p.m. and that she had taken him home
around 1:00 a.m. On cross-examination, the prosecutor
asked Thomas if she remembered a conversation she had
with Detective Webb in which she stated that Taylor had
called her from the county jail and asked that she tell the
police that he was with her the night of the crime. She
admitted that she had spoken with Detective Webb, but was
unable to recall the substance of their conversation.
4
Like Rena, Steven was also shown a photographic array on
August 7, 1999 and positively identified Hull as one of the
perpetrators. Steven also told Detective Webb that he had known
Hull prior to the armed robbery.
No. 04-4061 7
At the completion of Thomas’s testimony, defense counsel
informed the court that Taylor wished to testify. Thereafter,
Taylor took the stand and his counsel asked him if he
remembered what he was doing on August 6, 1999. When
Taylor replied that he did, defense counsel asked him why
he recalled that date. Taylor responded that the date was
familiar to him because he had been released from jail just
two days earlier. He went on to testify that on August 6, he
spent the evening with Sharlisha Thomas and their son.
According to the defendant, he went to Thomas’s house to
drop off some clothes for their son and stayed there from
approximately 5:00 p.m. until after midnight, when she
drove him home. When Taylor was asked by defense counsel
if he took part in the armed robbery, he replied, “No, I did
not.” Defense counsel then asked Taylor if he had ever been
convicted of a crime. Taylor answered that he had been
convicted, once as an adult and twice as a juvenile.5 During
the prosecution’s brief cross-examination, Taylor admitted
that he knew Steven Lee prior to the robbery and acknowl-
edged that Steven would recognize him if they were to
encounter one another.
At the conclusion of Taylor’s testimony, the prosecution
recalled Detective Webb as a rebuttal witness. Detective
Webb testified that, during the investigation, she received
a “notice of alibi investigation request” from officers
investigating Taylor’s involvement in the armed robbery.
Taylor’s proffered alibi was that, on the night of August 6,
1999, he was with Sharlisha Thomas and could not have
possibly taken part in the armed robbery. On January 8,
2000, Detective Webb interviewed Thomas, who disclosed
that she had received a phone call from Taylor while he was
confined in the Milwaukee County Jail. According to
Thomas, Taylor told her that the police would be contacting
5
Defense counsel never inquired as to the nature of his previous
crimes.
8 No. 04-4061
her and that she should tell them that he was with her on
the night of August 6th, and thus couldn’t have participated
in the robbery. Detective Webb also stated that Thomas did
tell her that Taylor had been with her some night in “early
August,” but that Thomas could not remember if he was
with her on the night of August 6, 1999 or some other night.
After Detective Webb completed her testimony, the court
allowed the defense to recall Taylor to the witness stand.
Defense counsel elicited from Taylor that he learned he was
a suspect in the armed robbery on September 16, 1999,
when an officer spoke with him while he was confined in the
Milwaukee County House of Correction.6 On cross-examina-
tion, the prosecutor focused on Taylor’s September 16
conversation with the officer. The prosecutor asked Taylor
what he said to the officer, and Taylor stated that he denied
any involvement in the armed robbery. The prosecutor then
asked Taylor the following three questions:
Q: And did you tell him you were with Sharlisha, or did
you just tell him you didn’t have anything to do with
the robbery?
A: I told him I didn’t have anything to do with the
robbery because I didn’t feel—
Q: Isn’t it true that you didn’t tell him anything about
you [sic] were with Sharlisha on August 6, 1999?
A: No, I didn’t. I didn’t feel I had to because he asked
me about the robbery. He didn’t ask me where I was.
He just asked me did I have anything to do with it.
Q: Okay. And you didn’t feel it necessary to tell him
where you were at the time the robbery happened; is
that correct?
6
Milwaukee County House of Correction is a component of the
Milwaukee County jail system where inmates are confined
when sentenced to short terms of up to one year.
No. 04-4061 9
A: No, because he didn’t ask me that. He just asked me
did I have anything to do with the robbery. That was
his question. I said, No. He said, Okay.
Taylor’s testimony concluded the presentation of evidence.
On June 8, 2000, the jury found Taylor guilty of armed
robbery as charged. The trial judge entered a judgment
of conviction and sentenced him to a term of 25 years.
Represented by another attorney, Taylor filed a post-
conviction motion requesting a new trial. Taylor alleged
that the prosecutor’s questions concerning his post-Miranda
silence violated his right to due process and further that he
was denied his constitutional right to the effective assis-
tance of counsel because his trial attorney: (1) failed to
object to the prosecutor’s questions about his silence; (2)
failed to impeach the Lees’ testimony with their police
statements; (3) failed to object to impermissible hearsay and
opinion testimony from Detective Webb; (4) committed a
serious error by telling the jury during voir dire that Taylor
was a convicted felon; and (5) failed to adequately prepare
Taylor to testify. The trial court denied Taylor’s motion on
each of the issues and he appealed. On appeal, the Wiscon-
sin Court of Appeals affirmed the decision addressing only
the prejudice prong of Taylor’s ineffective assistance of
counsel claim. Specifically, the court held that any alleged
errors by Taylor’s trial counsel would not have
“undermine[d] confidence in the outcome” due to the
overwhelming amount of evidence produced against him.
State v. Taylor, 2002 WI App 34, 2001 Wis. App. LEXIS
1237 at *17 (Wis. Ct. App. 2001), cert. denied, 2002 WI 23,
250 Wis. 2d 559, 643 N.W.2d 95 (Wis. 2002) (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). Taylor
thereafter petitioned the Wisconsin Supreme Court for
review, but the court refused to hear the matter. See id.Having exhausted his state court remedies, Taylor filed
a petition for a writ of habeas corpus in the United States
10 No. 04-4061
District Court. See 28 U.S.C. § 2254. Taylor argued that his
trial counsel’s ineffective assistance was prejudicial to his
case. See Taylor v. Bradley, No. 03-C-127 (Sept. 17, 2004).
The district court denied Taylor’s petition, finding that any
alleged ineffective assistance Taylor’s trial counsel might
have exhibited did not rise to the level of prejudice. Id. at
*11-39. Taylor next requested that the district court issue
a certificate of appealability, which the court granted on the
limited question of whether trial counsel was ineffective for
failing to object to the prosecutor’s questions concerning
Taylor’s post-arrest, post-Miranda silence.7
II. DISCUSSION
Taylor claims that his trial counsel’s assistance was
ineffective because he failed to object when the prosecutor
questioned him about why he had not informed officers of
his proffered alibi at the time of his initial interrogation.
Taylor argues that his trial counsel should have objected
because these questions violated the rule announced in
Doyle v. Ohio, 426 U.S. 610 (1976), that a prosecutor cannot
use a defendant’s post-Miranda silence to impeach a defen-
dant’s exculpatory statements, and that counsel’s failure to
object prejudiced Taylor’s case. To prevail on his ineffective
assistance claim, Taylor must demonstrate that his coun-
sel’s performance fell below an objective standard of
reasonableness, and that “the [alleged] deficient perfor-
mance prejudiced the defense.” Strickland, 466 U.S. at 687-
88. In order to satisfy the prejudice prong, Taylor must
establish that “there is a reasonable probability that, but
7
Taylor also requested a certificate of appealability regarding
other perceived errors made by his trial counsel. The court
disagreed and concluded that Taylor had failed to make a sub-
stantial showing of the denial of a relevant constitutional right on
any of the remaining issues.
No. 04-4061 11
for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.” Id. at 694.
A. Standard of Review of Taylor’s Ineffective Assistance
Claim
Our review of the state court’s adjudication of Taylor’s
ineffective assistance claim is governed by the Anti-Terror-
ism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C.
§ 2254). Under the AEDPA, a state prisoner who petitions
for a writ of habeas corpus must establish that the state
court adjudication of his case was “contrary to, or involved
an unreasonable application of, clearly-established Federal
law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). We agree with the Wiscon-
sin Court of Appeals’ application of Strickland as the correct
legal standard governing Taylor’s ineffective assistance
claim. Accordingly, unless we were to hold that the Wiscon-
sin Court of Appeals “unreasonably applie[d] [the Strick-
land standard] to the facts of the case,” Taylor’s petition for
habeas relief must be denied. Bell v. Cone, 535 U.S. 685,
122 S. Ct. 1843, 1850 (2002). We review the district court’s
decision rejecting Taylor’s habeas petition de novo. Van
Patten v. Deppisch, 434 F.3d 1038, 1042 (7th Cir. 2006).
The bar for establishing that the state court’s applica-
tion of the Strickland standard was “unreasonable,” is a
high one. Murrell v. Frank, 332 F.3d 1102, 1111 (7th Cir.
2003). This court has previously stated that “ ‘only a clear
error in applying Strickland would support a writ of habeas
corpus.’ ” Id. (quoting Holman v. Gilmore, 126 F.3d 876, 882
(7th Cir. 1997)). Accordingly, as long as we are satisfied
that the Wisconsin Court of Appeals “took the constitutional
standard seriously and produce[d] an answer within the
range of defensible positions,” we will affirm the district
court’s decision to deny the writ. Mendiola v. Schomig, 224
12 No. 04-4061
F.3d 589, 591 (7th Cir. 2000). In assessing the state court’s
application of Supreme Court case law, the inquiry “is
whether the determination is at least minimally consistent
with the facts and circumstances of the case.” Sanchez v.
Gilmore, 189 F.3d 619, 623 (7th Cir. 1999) (internal quota-
tion marks and citation omitted).
B. Application of the Strickland Test
During the trial, the prosecutor asked Taylor what he
said to the officer during his initial interrogation on Sep-
tember 16, 1999, and Taylor stated that he denied involve-
ment in the armed robbery. The prosecutor then went on to
pursue this line of questioning by asking Taylor whether he
offered investigators an alibi during his ini-
tial interrogation. See supra pp. 8-9. When Taylor stated
that he did not provide an alibi, the prosecution asked him
why he had not. Id. at p. 9. Taylor argues that his trial
counsel should have objected to the questions because they
violated the rule that a prosecutor cannot use a defendant’s
exercise of his post-Miranda right to remain silent in an
attempt to impeach a defendant’s exculpatory statements at
trial, see Doyle, 426 U.S. at 618-20, and, further, that
counsel’s failure to object to this line of questioning preju-
diced Taylor’s case. Taylor contends that there is a reason-
able likelihood that if defense counsel had objected to the
prosecutor’s questions concerning Taylor’s post-Miranda
silence, the district judge would have agreed and, as a
result, the outcome of his trial would have been different.
We need not accept Taylor’s invitation to both critique his
counsel’s performance and determine whether he
would have fared better with the jury if counsel would have
objected. We agree with Taylor’s assertion that, in order to
be successful on an ineffective assistance claim, he must
demonstrate that: (1) his counsel’s performance objectively
fell “outside the wide range of professionally competent
No. 04-4061 13
assistance”; and (2) “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466
U.S. at 694. However, once a court is satisfied that a habeas
petitioner will be unable to mount a victorious challenge
under either of the two prongs of the Strickland test, it is
unnecessary and undesirable for that court to consider the
attorney performance facet of the analysis. See id. at 697.
This is particularly true when an ineffectiveness claim may
be disposed of on the basis of a lack of prejudice. Id. Indeed,
in Strickland, the Supreme Court stated that “a court need
not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as
a result of the alleged deficiencies,” and concluded that
where an ineffective assistance claim may be resolved based
on lack of sufficient prejudice “that course should be fol-
lowed.”8 Id. This court has consistently followed the Su-
preme Court’s mandate in Strickland, first examining
whether the petitioner has established prejudice and then,
if necessary, examining whether counsel’s performance fell
outside the parameters of what could objectively be consid-
ered “professionally competent.” See, e.g., United States v.
Banks, 405 F.3d 559, 568 (7th Cir. 2005); United States v.
Allen, 390 F.3d 944, 951 (7th Cir. 2004); Richardson v.
United States, 379 F.3d 485, 487-88 (7th Cir. 2004); Berkey
v. United States, 318 F.3d 768, 772 (7th Cir. 2003).
Nonetheless, the district court in this case, for reasons
unexplained, refused to take this prudent approach.
Instead, the district court began its analysis by examining
8
The Supreme Court’s rationale for this pronouncement was
extremely perceptive; for the Court feared that relentless “grad-
ing” of defense counsel’s performance by both state and federal
courts might “dampen the ardor and impair the independence of
defense counsel, discourage the acceptance of assigned cases, and
undermine the trust between attorney and client.” Id. at 690.
14 No. 04-4061
the performance of Taylor’s trial counsel, even though the
case could have more easily been resolved on lack of
prejudice grounds. In light of the Supreme Court’s guidance
in Strickland and this court’s clear precedent, proceeding
directly to the prejudice prong of the inquiry would have
been the more appropriate course to take. What’s more, the
Wisconsin Court of Appeals correctly followed this approach
in Taylor’s direct appeal of his conviction. See Taylor, 2001
Wis. App. LEXIS 1237 at *6-8. Federal review of Taylor’s
habeas claim should have been, and is, limited to determin-
ing whether the state courts’ decision was reasonable in
accordance with § 2254(d), as described above. Accordingly,
we will not delve into Taylor’s Doyle argument, and instead
confine our analysis to whether or not Taylor was preju-
diced. Strickland, 466 U.S. at 697 (stating that it is undesir-
able for courts to conduct a “second trial, this one of coun-
sel’s unsuccessful defense” when the case can be resolved on
lack of prejudice grounds).
An attorney’s deficient performance prejudices a defen-
dant’s case when it deprives the defendant of a fair trial, see
Fountain v. United States, 221 F.3d 429, 434 (7th Cir.
2000), such that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different,” Strickland, 466 U.S. at
694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. A trial counsel’s
deficient performance does not prejudice the defense when
his performance might possibly have had a “conceivable
effect” on the outcome of the case. Sullivan v. Fairman, 819
F.2d 1382, 1391 (7th Cir. 1987) (citing Strickland, 466 U.S.
at 693). Thus, even if we were to assume arguendo that his
attorney’s performance fell below an objective standard of
reasonableness under the first prong of Strickland, Taylor’s
conviction cannot be overturned unless the attorney’s
performance had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
No. 04-4061 15
Abrahamson, 507 U.S. 619, 623 (1993); see also Bieghler v.
McBride, 389 F.3d 701, 707 (7th Cir. 2004) (ineffective
assistance of trial counsel did not prejudice the case where
overwhelming evidence pointed to the defendant’s guilt);
Lieberman v. Washington, 128 F.3d 1085, 1096 (7th Cir.
1997) (same); United States v. Scott, 47 F.3d 904, 907 (7th
Cir. 1995) (same).
The evidence presented on behalf of the state as to
Taylor’s guilt beyond a reasonable doubt can be most
appropriately classified as overwhelming. Indeed, there was
a plethora of direct evidence at trial placing Taylor at the
scene of the crime. For example: (1) there were two eyewit-
nesses to the robbery, Steven and Rena Lee, who both
testified that Taylor played an active role in the heist,
repeatedly asking them for the location of “the money”
and wielding a firearm; (2) when questioned by the police,
Hull, Taylor’s cousin, implicated Taylor in the armed
robbery; (3) both Steven and Rena stated at trial that they
had been previously acquainted with Taylor and, as a
result, were later able to positively identify him in inter-
views with police shortly after the robbery and subse-
quently in a photographic array produced by police, leading
to his arrest; and (4) Steven testified that, shortly after the
armed robbery Taylor called him on the phone and apolo-
gized for his role in the heist, offering to return the stolen
goods. Although the Lees’ testimony evinced some minor
inconsistencies, it was clear and consistent with respect to
Taylor’s involvement. As we recently stated in Bieghler v.
McBride, “the jury obviously accepted [the Lees’] testimony,
warts and all, and it is not our place to second-guess that
assessment.” 389 F.3d at 707.
What’s more, Taylor failed to present any concrete
evidence in his defense; that is, other than his own self-
serving testimony. For example, Taylor’s proffered alibi was
extremely weak and unpersuasive. Although Thomas,
Taylor’s alibi witness, testified that she recalled being with
Taylor some night in “early August” she was unable to
16 No. 04-4061
recall the specific date. In addition, she testified that she
was the mother of Taylor’s child and was only testifying
because she had been subpoenaed to testify. As such, it
would have been reasonable for the jury to disregard her
testimony altogether. See United States v. Johnson, 437
F.3d 665, 675 (7th Cir. 2006) (stating that: “We will not
upset the jury’s credibility determination unless ‘excep-
tional circumstances’ exist . . . .”); United States v. Ogle, 425
F.3d 471, 477 n.5 (7th Cir. 2005). Also, Detective
Webb testified that Thomas told her that while Taylor was
in the Milwaukee County Jail, he called her and informed
her he needed her to provide an alibi for him by telling the
police that she had spent the night with him on August 6,
1999. At trial Thomas maintained that she did not recall
having made such a statement; however, it was the jury’s
prerogative to weigh the testimony of Detective Webb and
Thomas and decide who was telling the truth. In this case,
the verdict reveals that the jury decided to believe the
prosecution’s witnesses over the testimony of Taylor and
Thomas. See id.; see also Sarkes Tarzian, Inc. v. U.S. Trust
Co. of Fla. Sav. Bank, 397 F.3d 577, 585 (7th Cir. 2005)
(noting that where inherent inconsistencies in the testi-
mony and evidence presented at trial exist “it [is] certainly
within the province of the jury to parse the facts, to weigh
the credibility of each witness and to disregard the testi-
mony of witnesses it found to be less credible or not
worthy of credence.”)
Upon our review of the record, including the trial and
appellate court orders, we are convinced that the state
courts’ adjudication of Taylor’s claims is consistent with
the facts in this case and supported by the evidence pre-
sented against Taylor. Indeed, the overwhelming amount of
evidence produced against Taylor at trial doomed his
ineffective assistance of counsel claim to failure. In short,
he has failed to establish that, but for his trial counsel’s
failure to object to the prosecutor’s alleged Doyle violation,
No. 04-4061 17
“there [was] a reasonable probability that . . . the result of
the proceeding would have been different.” Strickland, 466
U.S. at 694.
The denial of Taylor’s petition for a writ of habeas corpus
is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-22-06